Lamb v Camden London Borough Council
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE OLIVER,LORD JUSTICE WATKINS |
| Judgment Date | 18 March 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0318-3 |
| Docket Number | 81/0170 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 March 1981 |
and
and
[1981] EWCA Civ J0318-3
The Master of the Rolls
(Lord Denning)
Lord Justice Oliver and
Lord Justice Watkins
81/0170
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE FAY, Q.C.)
Royal Courts of Justice.
MR. LOUIS BLOM-COOPER, Q.C., MR. JOHN DYSON and MISS P. DARBY (instructed by Messrs. Bernard Sheridan & Co.) appeared on behalf of the Plaintiffs (Appellants).
MR. BRUCE LAUGHLAND, Q.C. and MR. RICHARD WOODHOUSE (instructed by Messrs. Wilkinson Kimbers & Staddon) appeared on behalf of the Defendants (Respondents).
THE FACTS
Off Hampstead Heath there is a terrace of houses of quality "built in the early 19th century. They are called the Villas on the Heath. One of them belonged to Mrs. Lamb. In 1972 she went to New York and let the house to a tenant. Whilst she was away the local council decided to replace the sewer in the road next to the house. In October 1973 they dug a deep trench a few feet from the front wall of the house. In doing it, they broke into a water main. The water burst out and washed out soil from the foundations of the house. There was subsidence. The walls cracked. It became unsafe to live in. The tenant moved out. Mrs. Lamb, still in America, got her father, her solicitors and her agents to look after her interests. In the summer of 1974 she herself came back for six weeks and made preliminary arrangements for repairs to be done. The work was so extensive that she had her furniture removed and put into store in Harrods' repository. Then she went back to America.
The house—being then left unoccupied and unfurnished—was a sitting target for squatters. In October 1974 they invaded it. Mrs. Lamb returned for three weeks at Christmas. She found the squatters still there. She was appalled at the state of the place. Her solicitors issued a summons under order 113 and managed to get them out. After those squatters had gone, her father got some building labourers to put up a few boards at a cost of £10. The neighbours helped too.
But a few months later, in the summer of 1975, there was a second invasion of squatters. A shifting population. As some went out, others came in. Mrs. Lamb's agents did what they could to get them out. The electricity and gas were cut off. But to no avail. The squatters pulled off the panelling for fuel. They ripped out the central heating and other installations. They stole them. Eventually the police arrested the squatters on a charge of larceny. Whilst they were at the police station, Mrs. Lamb's agents got in and made the premises secure with elaborate reinforced defences. That was in May 1977. The end of the squatters.
Then at last the work of repair was started. It was finished in 1979. The house was put in first-class order and let once again. Mrs. Lamb then sent the bill in to the council. She said the expense was all due to their negligence or to a nuisance created by them in the course of their work on the sewer. Eventually the council admitted liability for nuisance. The damages were left to an official referee. Over £50,000 was expense due to the subsidence. But nearly £30,000 was the cost of repairing the malicious damage done by the squatters and their thefts.
LORD RELD'S TEST
On those facts this point of law arises: Can Mrs. Lamb recover from the council the £30,000 due to the squatters' damage? The official referee (His Honour Judge Edgar Fay, Q.C.) found that it was too remote and was not recoverable. He cited the speech of Lord Reid in Dorset Yacht Co. v. Home Office (1970) Appeal Cases 1004, especially the passage at page 1030 where Lord Reid said:
"These cases show that, where human action forms one of the links between the original wrongdoing of the defendant and the loss suffered by the plaintiff, that action must at least have been something very likely to happen if it is not to be regarded as novus actus interveniens breaking the chain of causation. I do not think that a mere foreseeable possibility is or should be sufficient, for then the intervening human action can more properly be regarded as a new cause than as a consequence of the original wrongdoing. But if the intervening action was likely to happen I do not think that it can matter whether that action was innocent or tortious or criminal. Unfortunately, tortious or criminal action by a third party is often the 'very kind of thing' which is likely to happen as a result of the wrongful or careless act of the defendant. And in the present case, on the facts which we must assume at this stage, I think that the taking of a boat by the escaping trainees and their unskilful navigation leading to damage to another vessel were the very kind of thing that these Borstal officers ought to have seen to be likely".
In our present case the judge applied that passage in these words:
"I would feel disposed, if it were relevant, to hold that squatting was at the material time a reasonably foreseeable risk, but I am quite satisfied that no one familiar with the house and the locality would at any time between the accident in the autumn of 1973 and the first invasion about a year later have said that squatting was likely. It follows that in my judgment the extensive damage caused by the squatters is too remote and cannot form part of the damage payable by the defendants".
WAS LORD REID RIGHT OR WRONG?
Mr. Blom-Cooper (who was himself counsel in the Dorset Yacht case) submitted that Lord Reid was in error in that passage. For once Homer nodded. Presumptuous as it is, I agree.
In the first place the saying of Lord Reid was an obiter dictum. The Dorset Yacht case came up for decision on a preliminary issue. It was whether the Home Office "owed any duty of care to the plaintiffs (the owners of the yacht) capable of giving rise to a liability in damages" (page 1008E). So the question was only as to the duty of care. It was not as to remoteness of damage or as to causation.
Yet, as I have often said, the three questions—duty, causation and remoteness—run continually into one another. So it was natural for the Law Lords to run them together. As I read the speeches they were much concerned to limit the extent of the liability of the Home Office. But they did it in different ways. Three of them did it by restricting the range of persons to whom the duty was owed. Lord Morris of Borth-y-Gest said the duty was owed "to the owners of the nearby yachtss" (page 1034D). Lord Pearson said that the duty was owed to the boatowners. He said that "the plaintiffs as boatowners were in law 'neighbours' of the defendants" (page 1054F). Lord Diplock said that the duty of the Borstal officer was "owed only to persons whom he could reasonably foresee had property situate in the vicinity of the place of detention of the detainee which the detainee was likely to steal or to appropriate and damage in the course of eluding immediate pursuit and recapture" (pages 1070H-1071A).
Now I would test the rulings of the Law Lords by asking: Suppose that, by some negligence of the staff, a Borstal boy—or an adult prisoner—escapes over the wall—or from a working party. It is not only reasonably foreseeable—it is, as we all know, very likely—that he will steal a car in the immediate vicinity. He will then drive many miles, abandon the car, break into a house and steal clothes, get a lift in a lorry, and continue his depredations. On Lord Diplock's test—and I fancy Lord Morris of Borth-y-Gest and Lord Pearson also—the Home Office would owe a duty of care to the owner of the stolen car but to none of the others who suffered damage. So the owner of the car could sue, but the others could not.
But on Lord Reid's test of "very likely" to happen, the Home Office would be liable not only to the owner of the stolen car, but also to all the others who suffered damage: because it was very likely to happen.
That illustration convinces me that Lord Reid's test was wrong. If it were adopted, it would extend the liability of the Home Office beyond all reason. The Home Office should not be liable for the depredations of escaped convicts. The householders should recover for the damage—not against the Home Office but on their insurance policies. The insurers should not by subrogation be able to pass it on to the Home Office.
Another reason why I would reject Lord Reid's test is that I find it difficult to reconcile with the decision in Stansbie v. Troman (1948) 2 King's Bench 48. The decorator was held to be under a duty of care to the householder—to lock the door—but no one could suggest that it was very likely that a thief would walk in and steal the diamond bracelet. Lord Justice Tucker said that the decorator was liable because it was "as a direct result of his negligence that the thief entered by the front door". He was obviously applying Re Polemis (1921) 3 King's Bench 560, which had not then been overruled. If the decision in Stansbie v. Troman is to be justified nowadays, it can only be because it was reasonably foreseeable that a thief might walk in—not that it was at all likely.
The third reason is that I find the test of "very likely" very difficult to reconcile with the Wagon Mound cases which were summarised by Lord Upjohn in Czarnikow v. Koufos (1969) 1 Appeal Cases at page 422C:
"The tortfeasor is liable for any damage which he can reasonably foresee may happen as a result of the breach, however unlikely it may be, unless it can be brushed aside as...
To continue reading
Request your trial
- Meah v McCreamer (No. 2)
-
Fullowka et al. v. Royal Oak Ventures Inc. et al., [2004] Northwest Terr. Cases 66 (SC)
...[para. 643]. Walker v. Deluxe Cab Ltd., [1944] 3 D.L.R. 175 (Ont. H.C.), refd to. [para. 643]. Lamb v. Camden London Borough Council, [1981] 2 All E.R. 408 (C.A.), refd to. [para. Perl (P.) (Exporters) Ltd. v. Camden London Borough Council, [1983] 3 All E.R. 161 (C.A.), refd to. [para. 645]......
-
Fullowka et al. v. Pinkerton's of Canada Ltd. et al., (2008) 433 A.R. 69 (NWTCA)
...[1995] 1 S.C.R. 131; 177 N.R. 297; 162 A.R. 241; 83 W.A.C. 241, refd to. [para. 42, footnote 73]. Lamb v. Camden London Borough Council, [1981] Q.B. 625 (C.A.), refd to. [para. 42, footnote Jones v. Shafer Estate, [1948] S.C.R. 166, refd to. [para. 42, footnote 74]. Dorset Yacht Co. v. Home......
-
Canadian National Railway Co. et al. v. Norsk Pacific Steamship Co. and Tug Jervis Crown et al., (1992) 137 N.R. 241 (SCC)
...249, 253, 254]. Smith v. Bush, [1990] 1 A.C. 831; 104 N.R. 355 (H.L.), refd to. [para. 297]. Lamb v. Camden London Borough Council, [1981] Q.B. 625 (C.A.), refd to. [para. Photo Production Ltd. v. Securicor Transport Ltd., [1980] A.C. 827, refd to. [para. 311]. Statutes Noticed: Civil Code ......
-
THE PROMISE OF UNIVERSALITY
...Health Board[2000] 2 AC 59 at 106A, per Lord Clyde). 246Tan Juay Pah v Kimly Construction Pte Ltd[2012] 2 SLR 549 at [85]–[87]. 247[1981] QB 625. 248[1991] Ch 295. 249Contra Jane Stapleton, “Comparative Economic Loss: Lessons from Case-law focused ‘Middle Theory’” (2002) 50 UCLA Law Review ......
-
The site
...Inc v he Circle Ltd Partnership (1995) 49 Con LR 12 at 26–27, per Staughton LJ. 80 [1948] 2 KB 48. 81 See also Lamb v Camden LBC [1981] 1 QB 625 at 635, per Lord Denning MR; Smith v Littlewoods [1987] 2 WLR 480 at 503, per Lord Gof; Mitchell v Glasgow City Council [2009] 1 AC 874 at 887 [23......
-
Tort, Insurance and Ideology: Further Thoughts
...for damages to which insurance is material:53 purecontract claims; tort claims arising out of contractual relationships;and tort claims47 [1981] QB 625, 636.Professor Bob Lee and the present author made this point in a contemporarynote on the case:‘Human Actions as Novus Actus Interveniens’......
-
Risk and Remoteness of Damage in Negligence
...Ogwo vTaylor[1988] AC 431.89 Indeed it could be argued that the initial harm includes the compromised resistance to the furtherharm.90 [1981] QB 625.91 See n 22 above.92 See eg Home Office vDorset Yacht [1970] AC 1004, per Lord Reid at 1030. The courts have tendedto adopt an approach that i......